Citation Nr: 1455932
Decision Date: 12/19/14 Archive Date: 12/24/14
DOCKET NO. 12-21 100 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey
THE ISSUES
1. Entitlement to service connection for bilateral hearing loss.
2. Entitlement to an increased rating in excess of 30 percent for service-connected post-traumatic stress disorder (PTSD).
3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities.
REPRESENTATION
Veteran represented by: John Dorrity, Agent
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
S. Sorathia, Associate Counsel
INTRODUCTION
The Veteran served on active duty from December 1948 to January 1952 with service in Korea. His decorations include a Bronze Star Medal with "V" device.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2007 and March 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey.
The RO granted entitlement to service connection for PTSD in December 2008 and assigned a 30 percent rating. The Veteran did not submit a timely notice of disagreement and this rating decision became final. The Veteran then submitted a claim for an increased rating and the RO continued the 30 percent rating for PTSD in March 2010. Although the Veteran did not submit a timely notice of disagreement to this rating decision, pertinent records of VA treatment dated within one year of the March 2010 rating decision are now associated with the record. As such, the March 2010 rating decision is the proper determination certified for appellate review. See 38 C.F.R. § 3.156(b) (2011); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).
The Veteran provided testimony before the undersigned Veterans Law Judge in October 2014. A transcript of this hearing is associated with the electronic file.
The issue of entitlement to a TDIU was not certified for appeal. However, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran testified during the Board hearing that although he was volunteering, he was not currently employed. As such, the issue of entitlement to a TDIU has been raised and is within the jurisdiction of the Board.
As discussed below, the Veteran withdrew his claim of entitlement to service connection for hearing loss in January 2009. However, the issue of entitlement to service connection for bilateral hearing loss was raised during the October 2014 Board hearing. Also raised during the October 2014 Board hearing were the issues of entitlement to higher ratings for cold injury residuals of the bilateral lower extremities, as well as entitlement to service connection for cold injury residuals of the bilateral upper extremities. As the Board does not have jurisdiction over these issues, they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014).
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014).
The issues of entitlement to an increased rating for service-connected PTSD and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.
FINDING OF FACT
Prior to the promulgation of a decision in the appeal, the Veteran expressed his specific intent to withdraw the appeal of entitlement to service connection for hearing loss.
CONCLUSION OF LAW
The criteria for withdrawal of the appeal of entitlement to service connection for hearing loss have been met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.204 (2014).
REASONS AND BASES FOR FINDING AND CONCLUSION
An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2014). Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204 (2014). Here, the Veteran was denied entitlement to service connection for hearing loss in September 2007 and the Veteran disagreed with the rating decision. A statement of the case was issued in April 2008. A substantive appeal was received in August 2008 and the issue of entitlement to service connection for hearing loss was certified to the Board in November 2008. In January 2009, the Veteran stated that he wished to "withdraw all pending appeals."
As the Veteran has withdrawn the claim of entitlement to service connection for hearing loss in writing, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the service connection claim and the claim is dismissed.
ORDER
Service connection for hearing loss is dismissed.
REMAND
During the October 2014 Board hearing, the Veteran testified that his PTSD has worsened since the most recent examination, which was conducted in July 2011. As such, VA is required to afford him a contemporaneous VA examination to assess the current nature, extent, and severity of his service-connected PTSD. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Thus, this claim must be remanded.
The Veteran further testified that although he volunteers, he is not currently employed due to his service-connected PTSD and service-connected cold injury residuals of the bilateral lower extremities. As the issues of entitlement to an increased rating for service-connected PTSD and entitlement to a TDIU are intertwined, the TDIU claim shall be adjudicated upon remand.
Upon remand, the RO shall also associate any outstanding pertinent records of VA treatment dated since October 2014 and any pertinent records from Dr. S.E.
Accordingly, the case is REMANDED for the following action:
(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.)
1. Gather any outstanding pertinent records of VA treatment dated since October 2014 and associate them with the record.
2. Send the Veteran appropriate notice for the TDIU claim as well as the Application for Increased Compensation Based on Unemployability, VA Form 21-8940.
3. Afford the Veteran an additional opportunity to submit any other information that is not evidenced by the current record, to include pertinent records of mental health treatment from Dr. S.E. (identified during the October 2014 Board hearing). Provide the Veteran with the necessary authorizations for the release of any private treatment records not currently on file. Associate any available records with the claims file. Make at least two (2) attempts to obtain records from any identified source. If any records are unavailable, document the unavailability within the claims file and advise the Veteran so he can submit any copies in his possession.
4. Invite the Veteran to submit medical and hospitalization records, medical statements, and any other lay or medical evidence from himself and from other individuals who have first-hand knowledge of the nature, extent, and severity of his psychiatric symptoms and the impact of his service-connected conditions on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence.
5. Schedule the Veteran for a VA psychiatric examination to determine the nature, extent, and severity of his psychiatric disability. The claims file must be made available to and reviewed by the examiner. All tests deemed appropriate by the examiner should be performed.
The examiner should report all pertinent findings and comment on the severity of any social and occupational impairment related to his psychiatric disability.
The examiner should also opine as to the impact of the Veteran's service-connected disability on his ability to secure and follow a substantially gainful occupations,
All findings, along with a fully articulated medical rationale for all opinions expressed, should be set forth in the examination report.
6. Then readjudicate the Veteran's claims of entitlement to an increased rating for PTSD, as well as the claim of entitlement to a TDIU. If the benefits sought remain denied, the Veteran and his representative must be furnished a Supplemental Statement of the Case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs